THE RELATIONS OF THE GENERAL GOVERN¬ 
MENT WITH THE STATES COMPOSING 
, THE FEDERAL UNION. 


THE ANNUAL ADDRESS 


BEFORE 

THE NEW YORK STATE BAR ASSOCIATION 


Albany, N. Y., January 17, 190B 


BY 


WILLIAM LINDSAY 




/ 




THE HELATIONS OF THE GEXEKAL GOVEKisr- 
:^IEA^T WITH THE STATES COMPOSmG 
THE FEDERAL UNIOAL 


Is the United States of America a nation ? Are the 
United States of America to he spoken of as plutal or 
singular ? 

The two propositions involved in these inquiries have 
been, with political philosphers, the subject of prolonged, 
ingenious and apparently inexhaustible discussion. Each 
may sometimes be answered in the affirmative, and each 
sometimes in the negative, but each answer when given, is 
subject to qualification. 

As to the relations of the United States with foreign coun- 
tries, and foreign ])eoples, and as to .the right and capacity 
of that government to preserve its own existence, the Union 
constitutes a nation, Avith all the attributes of nationality, 
and Avith full ])OAver to levy Avar, conclude peace, contract 
alliances, estal)lish commerce and do all other things Avhich 
an independent nation may of right do. 

In the distribution of the powers of government, those 
delegated to the general government, affecting domestic af¬ 
fairs, are specified and enumerated, hut not so as to those 
affecting our relations Avith foreign countries. As to the 
American States and their people, the Federal constitution 
sets out the grants, marks the boundaries and prescribes the 
limitations of Federal authority. But in our intercourse 
with the outside AAT)rld, the Federal government may do and 
perform all the acts and things which other independent na¬ 
tions may of'right do. At home, Avith our oavii people, the 
Union is a constitutional federal republic; Avith the AA^orld 
at larg-e, it is soA^ereign. It recognizes no superior and is re¬ 
stricted alone, by the canons of international laAV, and the 
rules of natural justice and common reason. 


2 


The people of the United States have always had to deal, 
and if I may venture a prediction, will have, imtil the end 
of time, to deal with the task of defining the constitutional 
relations of the Federal Government with the Governments 
of the individual States composing the American Union. 

These relations are of sentimental, and perennial interest 
to all, and of vital as well as of practical and perpetual im¬ 
portance to those engaged in the administration and presenta¬ 
tion of our dual system of government. They are of excep¬ 
tional importance, and the subject of exceptional interest at 
this time, when it is being gravely claimed that problems 
heretofore regarded as domestic in their cliaracter, and 
clearly within the reserved powers of the States, have so 
developed, that they can not be solved, as the public interest 
demands, except by the intervention of the Federal Govern¬ 
ment, and the use of its strong arm, and therefore that it has 
become necessar)^ that greater power in that government 
shall be worked out and established, in the application of 
remedies, which heretofore it has not been contended, con¬ 
ceded or understood, the Federal Government has authority 
to apply, and which can not now be applied by that Govern¬ 
ment except by the exercise of powers which have, in the 
l)ast, been regarded as reserved by, and residing in the 
States, to the exclusion of any superior or even concurrent 
authority. 

To work out the existence of this new Federal power, 
resort must be had to constitutional amendment, or to the 
application of more liberal rules of interpretation than the 
Courts have, up to tliis time, felt at liberty to apply, in their 
efforts to discover and define the powers conferred by the 
Federal Constitution. 

Differing from the nations of olden times, we have a 
written constitution, which does not, like an unwritten one, 
change from time to time to keep in harmony with the 
progress of events. 


3 


Oiir constitution does not march ^like an unwritten con¬ 
stitution. It does not expand even with the existence of an 
undisputed necessity for its expansion. Its meaning is the 
same to-day it was yesterday, and will remain the same until 
changed by amendment. The unfolding of the Constitution 
and the discovery and exercise of powers not theretofore 
called into play, does not imply that new powers have been 
created, but that old powers—powers existing from the time 
the Constitution was adopted—are put into execution, the 
occasion for their execution having come about for the first 
time. 

The Courts have no concern with the Constitution, ex¬ 
cept to discover its meaning and to apply that meaning to the 
questions, which in the progress of events come before them 
for adjudication. They have no right to add to, nor to sub¬ 
tract from the most unimportant constitutiona.l provision. 
It is their duty to explore the mysteries of the Constitution, 
and to bring to the light of day, the latent wisdom that may 
be concealed within its bosom. 

The safest rule of interpretation, and a rule established 
by the Supreme Court, is to look to the nature and objects 
of the particular powers, duties and rights, with all the 
lights and aids of contemporary history, and to give to the 
words of each provision of the Constitution just such opera¬ 
tion and force, consistent with their legitimate meaning, as 
may fairly secure and attain the ends proposed. It was the 
opinion of Mr. Jefferson that on every question of construc¬ 
tion, we should carry ourselves back to the time when the 
constitution was adopted, recollecting the spirit manifested 
in the debates, and instead of trying what meaning may be 
squeezed out of the text, or invented against it, conform to 
the probable one in which it was passed. 

An unwritten Constitution like that of Great Britain is 
evolutionary. It grows from year to year. It is never com¬ 
plete. Mr. James Bryce, speaking of that Constitution, 
said: 


4 


is constantly changing, for as the legislature, in 
the exercise of its powers, passes enactments which 
affect the methods of Government, and the political 
rights of the citizens, there is no certainty that what is 
called the Constitution, will stand the same at the end 
of a given session of parliament as it stood at the be¬ 
ginning/’ 

Such a Constitution he describes as a flexible one; while 
the Constitution of the United States is of the rigid type but 
no Constitution, in his opinion, can be absolutely rigid. 

One Constitution, he continues, 

^hnay alter more frequently or easily than, another, 
but an absolutely unchangeable Constitution is an im¬ 
possibility. Therefore, it is to be expected that the 
x\merican Constitution will change, and when its pres¬ 
ent condition is com])ared with its condition in 1789, 
lie feels that it has felt the hand of time and change.” 

Of course, our Constitution can be, and has been changed 
by amendments, but ]\Ir. Bryce presents a graver, proposi¬ 
tion when he states that 

^Ut has been develo]:)ed by interpretation, that is, 
by the unfolding of the meaning impliedly contained 
in its necessarily brief terms, or by the extension of its 
provisions to cases which they do not strictly contem¬ 
plate, but which their general spirit must he deemed 
to cover.” 

The written Constitution adopted by our ancestors in 
1789 with their then clear view of the environment which 
influenced their action, can not be changed by interpretation, 
to what, in the estimation of la.v’;}^ers and statesmen of the 
present day, it ought to have meant. If so, that written 
Constitution is not fixed or permanent. It may be set aside 
and annulled by the fancies and ingenious preferences of 
subsequent generations. Our written Constitution is, what 


5 


those who framed and ratified it believed and knew it to he, 
and can not, hj the process of constrnction or interpretation, 
he changed to what men of a century later, may tliink it 
ought to have been at the beginning. 

Whether the thirteen original states became free and 
independent in their separate capacities, or free and inde¬ 
pendent as a union of colonies, converted, into a Union of 
States by the successful result of the War of the Revolution, 
is an academic rather than a practical question. It is in¬ 
disputable that after their independence had been acknowl¬ 
edged, each was a free and independent sovereignty. They 
were held together, it is true, by the Articles of Confedera¬ 
tion. But those articles constituted at the most, a league for 
the common benefit, and for the accomplishment of the com¬ 
mon ends of the Confederacy. 

In each of the States the people had delegated all the 
powers they thought proper to confer on the agencies of their 
creation, and when the Goveimment of the United States 
came to be instituted, the people of the States, partitioned 
the powers of Government between the Federal, and the 
State organizations. 

Discussing the character, attributes and powers of the 
Federal Government, thus formed, it was declared by the 
Supreme Court in Marshall v. Hunter, 1 AVheaton, that 

“The Government of the United States can claim no 
powers which are not granted to it by the Constitu¬ 
tion, and powers actually granted, must be such as are 
expressly given or given by necessary implication. On 
the other hand this instrument, like every other grant, 
is to have reasonable constniction, according to the 
import of its terms, and where power is given, in 
general terms, it is not to be restrained to particular 
cases unless the constimction grows out of the context 
expressly, or by necessary implication. The words 
/ are to be taken at their natural and obvious sense and 
not in a sense unreasonably restricted or enlarged.^’ 


6 


The philosophy of this partition of powers between the 
general government, and the States, and the manner in 
which it had been accomplished was thus epitomized by 
Chief Justice Alarshall: 

‘^A\dien the American people created a national leg¬ 
islature with certain enumerated powers, it was 
neither necessary nor proper to define the powers re¬ 
served by the States. Those powers proceed not from 
the people of America but from the people of the 
several States, and remain after the adoption of the 
Constitution what they were before except so far as 
may be abridged by that instrument.’’ 

Mr. ]\[adison in advocating the adoption of the Constitu¬ 
tion, expressed the opinion that: 

^Mhe powers delegated by the proposed Constitu¬ 
tion to the Federal Government are few and defined. 
Those which are to remain in the State Governments 
are unenumerated and undefined. The former will 
be exercised ])rincipally on external objeets as war, 
peace negotiations and foreign commerce. * * 

The powers reserved to the several States will extend 
to all the objects which in the course of affairs concern 
the lives, liberty and property of the people and the 
internal order, improvement and prosperity of the 
States.” / 

A cognate question was before the Supreme Court in the 
case of Texas v. White, 7 AVallace, and in the opinion of the 
Court delivered b}^ Chief Justice Chase, it was announced 
that 


^Mhe peiq^etuity and the indissolubility of the 
Union by no means implies the loss of distinct and 
individual existence, or of the right of self-govern¬ 
ment by the States. Under the Articles of Confedera¬ 
tion each State retained its sovereignty, freedom and 
independence, and every power, jurisdiction and 
right not expressly delegated to the United States. 


7 


Under the Constitution, though the powers of the 
States were much restricted, still, all poweirs not dele¬ 
gated to the United States, nor prohibited to- the 
States, are reserved to the States respectively or to the 
people. And we have already had occasion to remark 
at this term, that hhe people of each State compose 
a State, having its own government, and endowed 
with all the functions essential to a separate and in¬ 
dependent existence’ and that Svithout the States in 
the Union, there could be no such political body as 
the United States.’ Not only, therefore, can there be 
no loss of separate and independent autonomy to .the 
States, through their union under the Constitution, 
but it may be not unreasonably said, that tf|6''preser- 
vation of the States, and the maintenance of their 
governments, are as much wdthin the design and care 
of the Constitution, as the preservation of the Union, 
and the maintenance of the National Government. 
The Constitution, in all its provisions, looks to an 
indestructible Union, composed of indestructible 
States.” 

In Lane Co. v. Oregon, decided at the same term, it was 
said by Chief Justice Chase: 


■^^‘The people of the United States constitute one 
nation under one Government, and this Government, 
within the sco])e of the powers with which it is in¬ 
vested, is supreme. On the other hand, the people of 
each State compose a State, having its own govern¬ 
ment, and endowed with all the functions essential 
to separate and independent existence. The States 
disunited w^ould continue to exist; without the States 
in union, there could be no such political body as the 
United States.” _ 


To what extent and in wdiat way the adoption of the 
13th, 14th and 15th amendments to the Federal Constitution 
atfected the relations of the Federal wdth the State Govern¬ 
ments was considered by the Supreme Court in the Slaugh¬ 
terhouse Cases, decided in 1872. ;^[r. Justice Miller deliv*^ 


8 


ered the opinion of the Court in those cases. After discuss¬ 
ing the public sentiment inducing their adoption, he said: 

^^Bnt, however, pervading this sentiment, and how¬ 
ever it may have contributed to the adoption of the 
amendments we have been considering, we do not see 
in these amendments any purpose to destroy the main 
features of the general system. Under pressure of all 
the excited feelings growing out of the war, our states¬ 
men have still believed, that the existence of the States 
with powers for domestic and local government in¬ 
cluding the regulation of civil rights,—rights of per¬ 
sons and property—was essential to the working of our 
complex form of government, though they have 
thonght proper to impose additional limitations on the 
States and to confer additional power on that of the 
nation.’’ 

In United States v. Cruikshank, 92 U. S., Chief Justice 
IVaite, citing the Slaughterhouse cases, said: 

^AVe have in our political system a government of 
the United States and a government of each of the 
several States. Each one of these govennnents is dis¬ 
tinct from the others and each has citizens of its own 
who owe it allegiance and whose rights it must pro¬ 
tect. The same person may he at the same time a 
citizen of the United States and a citizen of a State, 
but his rights of citizenship under one of these gov¬ 
ernments will he different from those he has under the 
other.” 

We have a union of States held together by the Constitu¬ 
tion, which is a permanent compact and which creates a 
government, each and every one of whose powers has been 
drawn from the pre-existing pov^rs of the States. This 
Government, with its delegated powers, is supreme over all 
the people, all the citizens of the United States, and 
all the citizens of the several States, when exercised 
in pursuance of the provisions of the Federal Const!tu- 


9 


tion. Blit any attempt by it or any of its departments to ex¬ 
ercise poAvers not deleigated would amount to an act of 
usurpation, which it would be the duty of the States, and 
the people of the States, to oppose by all lawful and consti¬ 
tutional means. 

It was said by the Father of His Country in his greatest 
State paper, his Farewell Address, that 

^^The basis of our political system is the right of 
the people to make and to alter their constitutional 
Government. But the Constitution which at any time 
exists until changed by an explicit and authentic act 
of the whole people, is sacredly obligatory upon all. 

The very idea of the power and the right of the people 
to establish Government, pre-supposes the duty of 
everv individual to obeA^ the established Government.’’ / 

/ 

An attempt to expand the Constitution by construction, 
or by the enactment of statutes invading the reserA’^ed rights 
of the States, and so attaching the provisions for the unau¬ 
thorized exercise of poAver, to provisions Avithin the scope 
of the authority that has been granted, and thus to deprive 
the judicial tribunals of the opportunity to adjudge such 
statutes, so far as they invade the reserved rights of the 
States to be nullities, is the legislative evasion of ^^the duty 
of every one to obey the established Government, until 
changed by an explicit and authentic act of the aaIioIo peo¬ 
ple.” 

The constitutional poAver of the States to incorporate 
l)anks and to authorize them to issue notes, not intended or . 
considered to be bills of credit but AAdiich may circulate as 
currency, was established by an unbroken line of authorities 
long prior to July 16, 1866, AAlien a Congressional enactment 
required the State banks to pay over 10% taxes on the 
amount of their notes, or on the notes of any person, or of 
any other State bank, used for circulation and paid out by 
them after the first day of August, 1866. 


10 


The authority of Congress to tax the circulation of State 
banks, to raise money to pay the debts, and to provide for 
the common defense, and the general welfare of the United 
States, was undoubted, but the power of Congress, under the 
guise of exerciising the authority conferred for that purpose, 
to absolutely deprive State banks of the right to issue and 
circulate their notes as currency, as provided by their acts 
of incorporation, presented an altogether different proposi¬ 
tion. 

With reference to this act the Supreme Court used this 
language: 

^Tt is insisted, however, that the tax in the case be¬ 
fore us is excessive, and so excessive as to indicate a 
purpose on the part of Congress to destroy the fran¬ 
chise of the banks and is therefore beyond the con¬ 
stitutional power of Congress. 

“The first aswer to this is, that the judicial can not 
prescribe to the legislative department of the Govern¬ 
ment limitations uponrthe exercise of its acknowl¬ 
edged powers. The power to tax may be exercised op- 
])ressively upon persons, but the responsibility of the 
legislature is not to the Courts but to the people by 
whom its members are elected.’’ 

In the dissenting opinion of Judge Xelson and Judge 
Davis, it was insisted that: 

“The imposition upon the banks can not be upheld 
as a tax upon property. Is either could it have been so 
intended. It is simply a mode by which the powers or 
faculties of the States to incorporate banks are sub¬ 
jected to taxation and which, if maintainable, may 
annihilate these banks. We say nothing as to the pur¬ 
pose of this heavy tax of 16% upon the banks, 10% 
of which we can not but regard as imposed upon the 
powers of the States to create them. Indeed the pur¬ 
pose is scarcely concealed in the 0 ])inion of the Court, 
namely, to encourage the national banks. It is suffi¬ 
cient to add that the burden of the tax while it has en- 


11 


couraged these banks, has proved fatal to those of the 
States, and if we are at liberty to judge of the purpose 
of the Act, from the consequences which follow it, it 
is not perhaps going too far to say that these conse¬ 
quences were intended/’ 

Admitting that those inevitable consequences were in¬ 
tended, still the decision of the Court on this particular 
point was correct, as the Courts have no power to inquire 
into the purposes or objects sought to be accomplished by 
the legislative department, through the exercise of its consti¬ 
tutional authority. 

Only one other specimen of this character of 
legislation will be referred to. On the 2nd of 
August, 1886, when the Treasury of the United States was 
full to overllowing, and the moneys not necessary to pay the 
current expenses of the Government were being utilized in 
])urchasing bonds having years to run, at high premiums, 
the Congress of the United States passed an ^C4ct defining 
butter, and imposing a tax upon, and regulating the manu¬ 
facture, sale, importation and exportation of oleomarga¬ 
rine.” 

The provisions of this act were sufficiently specific to 
cover more than five pages of the Supplement to the Revised 
Statutes. Its purposes were disclosed by a section providing 
that the Commissioner of Internal Revenue should have the 
])ower to decide whether any substance made in imitation or 
semblance of butter, and intended for human consumption, 
contained ingredients deleterious to the public health, his 
decision to be subject to a])peal to a Board composed of the 
Surgeon General of the Army, the Surgeon General of the 
Aavy, and the Commissioner of Agriculture, their finding 
to be final. The act provided further that all oleomargarine 
intended for human consumption which contained ingre¬ 
dients adjudged to be deleterious to the public health, should 
be forfeited to the United States. 


12 


The police power of the States extends to the protection 
of the lives, health and property of a communitj against the 
injur ions exercise bv any citizen of his own rights, and what¬ 
ever affects the peace, good order, morals or health of a 
community comes within the scope of the police power. 
That power is exclusive in the several States. 

^Tt can not be denied that the power of a State to 
protect the lives, health and property of its citizens 
and to preserve good order and public morals, power 
to govern men within the limits of its domain, is a 
power original and always belonging to the States, not 
surrendered by them to the general Government, not 
directly restrained by the Constitution of the United 
States, and essentially exclusive.’’ 

The encouragement of the national banks and the sup¬ 
pression of the circulation of State bank notes—the protec¬ 
tion of the dairy interests against unfair competition by the 
manufacturers and venders of oleomargarine, and the pro¬ 
tection of the health of the people against those found to be 
offering for sale as food for human consumption, an article 
containing ingredients deleterious to the public health, were 
meritorious and beneficent objects, and the ends sought to 
be accomplished commend themselves to all right-thinking 
people, but the accomplishment of no end can justify or ex¬ 
cuse the usurpation by Congress of powers reserved by and 
residing exclusively in the States. 

By resorting to legislation of the character described Con¬ 
gress may sometimes succeed in doing, by indirection, that 
which, no one can be found to assert, it has tlie constitutional 
power to do openly and directly, but persistent resort to such 
a devious and indefensible practice, will gradually under¬ 
mine respect for the Constitution, and finally destroy faith 
in its efficacy. 

Turning again to Washington’s Farewell Address, we 
find him admonishing the people of the United States, that 


13 


it is important, the habits of thinking in a free country shall 
inspire caution in those intrusted with its administration, to 
confine themselves within their constitutional sphere; to 
avoid in the exercise of the powers of one department en- 
ei’oachment on another, because the spirit of encroachment 
tends to consolidate the powers of all the departments in 
one, and thus to create a real despotism, no matter what may 
be the form of Government. 

It is equally necessary to avoid encroachment, by direc¬ 
tion or by indirection, on the reserved rights of the States, 
lest the practice may eventually justify the fears of a dis¬ 
tinguished citizen of JSTew York who was a member of the 
convention that framed the Constitution. His fear was, 
that the Federal Government would arrogate to itself the 
right to interfere in the most minute objects of internal 
policy, and in the most trifling domestic concerns, and prove 
effective to absorb all powers of the State Legislatures and 
finally reach the point at which ^ffhe powers of the first will 
be all in all, and the latter a mere shadow and form without 
substance.” 

In defending the veto power of the President, Mr. Ham¬ 
ilton called attention to the propensity, of the Legislative 
Department to intrude upon the rights, and to absorb the 
powers of the other departments, ai)id to the insutficiency of 
a mere parchment delineation of the boundaries of each, and 
insisted that: 

^^The rules of just reasoning and theoretic propriety 
would teach us of themselves, that the one (depart¬ 
ment) ought not to be left at the mercy of the other 
but ought to possess a constitutional and effective 
power of self-defense.” 

It was supposed by the framers of the Constitution that 
the States reserved effective means of self-defense and that 
the jtidicial tribunals called into existence by the Constitu¬ 
tion, would always be open to them, and ready and able to 


14 


protect them against the invasion of their rights by the un¬ 
authorized action of any of the Departments of the Federal 
Government. If, however, the country shall countenance 
and approve CongTessional usurpation of the reserv^ed rights 
of the States, through the professed exercise of granted pow¬ 
ers, to the end that an unauthorized purpose may be accom¬ 
plished, the danger that the powers of the State may be 
gradually absorbed, ceases to be a mere possibility, and bc'- 
comes a living and alarming reality. 

hTo necessity however great or pressing, can excuse, much 
less justify, the exercise by the Federal Congress of powers 
not granted, or the invasion, no matter how skilfully or in¬ 
geniously accomplished, of the exclusive domain of State au¬ 
thority. The Constitution will not and cannot expand to 
meet a supposed exigency demanding such an encroachment, 
and no rule of interpretation or construction, can create a 
Federal authority, not created or intended to be created, by 
the Convention that framed the Constitution, and the States 
which adopted it. 

The Constitution is the Supreme Law of the land. Laws 
made ])ursuant to that instrument, and treatie-s made under 
its authority, are binding on all the people of the United 
States so long as they remain in force, but Congressional 
enactments that do not pursue the Constitution, aud official 
acts done or performed, no matter by whom, beyond the au¬ 
thority of the Constitution, have no constitutional validity. 

^^The Constitution is the law for rulers, and for people, 
in war and in peace, and covers with the sliield of its, pro¬ 
tection all classes of men at all times and under all circum¬ 
stances.’’ Uo department of Government is great enough, 
and no officer high enough, to exceed the power or author¬ 
ity conferred by the Constitution. 

The exercise by the Federal Government of powers not 
granted in express terms or by reasonable implication, is 
usurpation plain and simple. 


15 


In this connection and on this subject, the words of ad¬ 
vice and warning spoken by the rather of his Country ought 
not to he forgotten. He gave the advice, and uttered the 
warning, when he supposed he was bidding a final farewell 
to the cares and duties of public life. He was moved to 
speak by his solicitude for the welfare of his countrymen 
and the apprehension of dangers natural to such solicitude. 
He spoke with the more freedom, as his fellow-citizens could 
only see in what he said ^bhe disinterested warning of a 
parting friend who (could) have no personal motive tO' bias 
his counse].’’ That counsel in part he gave in the words that 
follow: 

^^If in the opinion of the people the distribution or 
modification of the constitutional powers be in any 
particular wrong, let it be corrected by an amendment 
in the way in which the Constitution designates. But 
let there be no change by usurpation, for though this 
in one instance may be the instalment of good, it is 
the customary weapon by which free Governments are 
destro\Td. The precedent must always overbalance in 
permanent evil any particular or transient benefit, 
which the use can at any time yield.” 


The wisdom of the advice, and the propriety and so¬ 
lemnity of the warning, no one can deny, and the advice 
ought no more to be rejected, and the warning no more to be 
disregarded to-day, than when the one was given, and the 
other sounded, more than a hundred years ago. 

It may be that the advances, in the use and application 
of steam and electricity, have brought about conditions 
which the States can not entirely or satisfactorily control, 
and that the successful denial of constitutional authority, 
without which the Federal Government can not intervene 
for the relief of the general public, may leave that public 
without the protection to which it is justly entitled. If such 
be the case, we have reached the point at which there should 


16 


be a redistribution of powers, between the States and the 
general Government, and possibly the grant by the people of 
powers they have not yet entrusted to their established Gov¬ 
ernments, State or Federal. 

Organized Government embraces as much of the origi¬ 
nal, illimi power of the people, as they See proper to 
impart to, or to confer upon the agencies they create. 

Original sovereignty is one thing. Delegated sovereign¬ 
ty another. 

^‘Power in the people, is.like light in the sun, na¬ 
tive, original, inherent and unlimited by anything 
human. In Governments it may be compared'^ith 
the reflected light of the moon; for it is only borrowed, 
delegated and limited by the intention of the people 
whose it is, and to whom Governors are to consider 
themselves responsible; while the people are responsi¬ 
ble onty to God ; themselves being the losers if they 
pursue a false scheme of politics.’^ 

As said by Mr. Justice ]\[atthews, in 118 U. S.: 

‘^^Sovereignty itself is of course not subject to law% 
for it is author and source of law”, but in our sys¬ 
tem, wdiile sovereign powers are delegated to the agen¬ 
cies of Government, sovereignty itself remains wuth 
the people, by whom and for whom all goveinment 
exists and acts.’’ 

Whether existing conditions demand the re-distribution > 
of powers betwnen the Federal and State Governments onl^^^ 
or a new” delegation of power by the people, either to the 
Federal or to the State Governments, in either event, the 
remedy is by Constitutional amendment, and not by resort¬ 
ing to artificial and unknown rules of constitutional inter¬ 
pretation, for the discovery of powers, which the States and 
the people have not granted expressly or by implication. 

It is objected that the methods providing for the amend¬ 
ments to the Constitution are cumbrous and difficult; that 


17 


they involve delay, and that attempts to secure amendments 
almost universally fail. It is claimed too, that proposed 
amendments, generally and necessarily, take on a party 
tinge, and that when proposed by the dominant party, their 
ratification as a rule, is opposed by the other party; also, 
that it is only at rare intervals representatives tJiSfe of one of 
the great parties compose two-thirds of the members of each 
of the two Houses of Congress, and still more seldom that 
such party is able to control three-fourths of the State Legis¬ 
latures. During the sessions of the next Congress, this objec¬ 
tion will apply, if at all, with less force than at any time 
dur^the past thirty-five years. But independent of that 
consideration, the objection is not supported by the history 
of the past. When the people of the United States are con¬ 
vinced by the lessons of experience, that the Constitution 
ought, in the interest of the present, or of futurity, to be 
modified or changed, they adopt the necessary amendments 
without reference to party affiliations or party predilections, 
and they adopt them with all the celerity consistent with the 
character of the work they are called on to perform. 

The first ten amendments were proposed by Congress on 
the 25th of September, 1189, and were ratified as early as 
December 15, 1791. 

The eleventh amendment was proposed on the 5th day of 
September, 1794, and ratified on the 8th day of January, 
1798. 

The twelfth amendment was proposed on the 12th day 
of December, 1803, and promulgated as ratified on the 25th 
day of December, 1804. 

The thirteenth amendment was proposed on the 1st day 
of February, 1865, and promulgated as ratified on the 18th 
day of Deceml>er, 1865. 

The fourteenth amendment was proposed on the 16th 
day of January, 1868, and promulgated as ratified on the 
28th day of July, 1868. 


18 


The fifteenth amendment was proposed on the 27th day 
of February, 1869, and promulgated as ratified on the 30th 
day of March, 1870. 

That many proposed amendments have failed of ratifica¬ 
tion is certainly time. It is also true that they ought to 
have failed, either for the want of inherent merit in them¬ 
selves, or because the States and the people were not ready 
to admit the necessity for the proposed changes in their 
organic and fundamental Federal law. 

Recurring again to the suggestions of Washington it will 
be found, that as to the proposed amendments that failed of 
ratification, the people remembered in all the changes to 
which they were invited, that time and habit are necessary 
to fix the true character of governments; that experience is 
the surest standard by which to test the real tendency of an 
existing Constitution, and that facility in changes on the 
credit of mere hy])Othesis and opinion, exposes to perpetual 
change from the endless variety of hypothesis and opinion. 
Fxperience shows, however, that the people have always 
been ready to support and ratify an amendment to remedy 
a substantial and permanent evil, or to accomplish a benefi¬ 
cent end, in tlie way of rendering still more perfect that 
^hnore perfect union” established by the Constitution. 

This is not the time for, nor do the proprieties of the 
occasion permit, the consideration of the supposed necessi¬ 
ties for the expansion of tlie Constitution, whether by inter¬ 
pretation, construction or amendment. Those necessities, if 
they exist, address themselves to statesmen and politicians 
and to the people at large. The members of the bar have 
an equal interest with the statesmen and politicians, but 
that interest they manifest, as citizens, and not 
through the instrumentality of the dignified association I 
have the honor this evening to address. 

There is a class of governmental powers that have been 
inaccurately described as concurrent, in the Federal and 


19 


State Governments. Out of attempts by the States to exer¬ 
cise these powers, many of the conflicts of jurisdiction he- 
tween the Federal and State Governments have arisen. 

As to the subjects of commerce, local in the sphere of 
their operation, the State may prescribe regulations, until 
Congress sees proper to act, but the power to regulate inter¬ 
state commerce is exclusive in the Federal Government. 
While the local regulations of the States may incidentally 
affect the subjects of such commerce, they cannot be admit¬ 
ted to regulate it in the sense that term is used in the Con¬ 
stitution. 

In matters affecting rather than regulating interstate 
commerce, the States have full power within their territorial 
limits, to regulate their internal police, ^flncluding in that 
general designation whatever will promote the peace, com¬ 
fort, convenience and prosperity of their people.” 

While it is true that in this regard, when the powers of 
the States and those of the general Government come in con¬ 
flict, the latter must control, yet until Congress sees proper 
to act on the identical subject, the powers of the States are 
plenary. 

The conflicts of jurisdiction that have occurred in the 
past history of the Government have grown out of the diffi¬ 
culty inflxing the exact location of the line dividing Federal 
powers from those reserved hy the States. Strictly speaking, 
there can he no constitutional conflict of jurisdiction. The 
apparent and sometimes almost irreconcilable disputes of the 
past have had their origin in the want of agreement, between 
the Federal and State representatives, as to the point at 
which the original and exclusive jurisdiction of the State 
terminates, and the supreme power of the Federal Govern¬ 
ment hegins. 

In the sphere of its delegated authority the supremacy 
of the United States can not be questioned. As to the 
powers reserved to the States, their jurisdiction is as absolute 


20 


as it was before the Eederal Constitution was adopted. 
While disputed claims to superior jurisdiction have some¬ 
times threatened the perpetuity of our institutions; in the 
end each controversy has eventually reached a conclusion, 
tending to support and perpetuate, rather than to destroy or 
impair the relations established when the dual Goveimment, 
under which we have lived for more than a hundred years, 
was called into existence. 

Such controversies w^ere anticipated when the Constitu¬ 
tion was adopted. The utter destruction of the State Gov¬ 
ernments was predicted by its opponents. 

On the other hand, Alexander Hamilton anticipated fu¬ 
ture danger from the unfortunate exercise by the States of 
their reserved powers : 

^Tt could not be forgotten (he said) that a disposi¬ 
tion in State Government to encroach upon the rights 
of the union is quite as probable as a disposition in the 
union to encroach upon the rights of the State Govern¬ 
ments. What side would be likely to prevail in such a 
conflict must depend on the means which the contend¬ 
ing parties could employ towards insuring success. As 
in Republics, strength is always on the side of the peo¬ 
ple, and as there are weighty reasons to induce a belief 
that the State Governments will commonly possess the 
most influence over them, the natural conclusion is 
that such contests will be most apt to end to the dis¬ 
advantage of the union, and that there is a greater 
probability of encroachment by the members upon the 
rederal head than by the Federal head upon the 
members.^’ 

The apprehension of the friends, and the fears of those 
opposed to the adoption of the Constitution, have not been 
realized. Conflicts of jurisdiction speedily arose, but 
the firmness of the Federal Courts, and their considera¬ 
tion for the States and those claiming under or through 
them, resulted in the peaceable adjustment of the matters 


21 


in dispute, and gradually reconciled the States and their 
people to the supreme authority of the general Government, 
within the sphere of its granted powers. 

In the decision of one of the earlier conflicts where it 
was necessary to treat as void hostile legislation of a sov¬ 
ereign state, the Supreme Court, through Chief Justice 
Marshall in 5 Cranch, used this language: 

^Gf the Legislatures of the several States, may at 
will, annul the judgments of the Courts of the United 
States, and destroy the rights acquired under those 
judgments, the Constitution itself becomes a solemn 
mockery and the nation is deprived of the means 
of enforcing its laws by the instrumentality of its 
own tribunals. So fatal a result must be deprecated 
by all, and the people of Pennsylvania not less than 
the citizens of every other State must feel a deep 
interest in resisting principles so destructive of the 
Union and in avoiding consequences so fatal to them¬ 
selves.’’ 

In the face of that decision, Pennsylvania for a time 
maintained an attitude of defiance, but eventually submitted 
with the best grace a defeated litigant can coimnand, when 
yielding obedience to a judgment, regarded at the time as a 
judicial outrage. 

A similar controversy arose out of a legislative enact¬ 
ment of the same State providing for the punishment of per¬ 
sons acting under the protection of an unpopular Federal 
law, and again the State submitted to the supreme authority 
of the general Government. 

In the years immediately preceding the Civil War many 
of the States enacted laws intended to defeat the enforce¬ 
ment of what was known as the ^Tugitive Slave Law.” 
Those enactments were defended in some instances by the 
contention that the law was unconstitutional, or excused in 
others, on the ground that in respect to that law, and its pro¬ 
visions, there wns a law higher than the Constitution. 


22 


In one of tlie Southern States laws were enacted for the 
avowed purpose of nullifying Federal legislation, and finally 
thirteen of the States adopted ordinances of withdrawal from 
the Federal Union, and defended their action by the claim 
that the Union was a league of sovereign states, and that the 
violation of the Constitution by the Federal Govern¬ 
ment, left the States free to withdraw from, and to ter¬ 
minate their connection with the union. The results of the 
Civil War, which raged from 1861 to 1865, terminated the 
existence of the institution of slavery, and removed all occa¬ 
sion for the personal liberty legislation of the F’orthern 
States. They likewise demonstrated to the satisfaction of 
a]], that the ordinances of secession could not be maintained. 

At the close of the unhappy period of reconstruction 
we found a restored union; we found the Constitution and 
all its provisions in full force; and we have to-day a Gov¬ 
ernment of unqualified consent in every section, and by all 
the people. 

Paraphrasing the language of Mr. James Bryce, we may 
observe, tliat the main object intended by the framers of the 
Constitution has stood and still stands unshaken. The 
scales of power stand fairly even. The President has not 
corrupted or enslaved Congress, and Congress has not over¬ 
awed or demoralized the President; nor does the Federal 
Legislature or the Federal Executive, threaten the liberties 
of the people. The States have not broken up the Union 
and the Union has not absorbed the States. The instrument 
under which these great results have been attained, has 
passed unimpaired through the furnace of a civil war. 

The union to-day embraces a body of commonwealths 
more than three times as numerous, and with more than 
twenty-fold the population of the thirteen original states. 

The political intelligence of the masses has been cul¬ 
tivated to a point never reached in any other country, and 
the Union has fostered and been found compatible with a 


L.of C. 


23 


largei’ degree of local Government tkan has ever existed 
elsewhere. 

I feel that I owe to the State Bar Association, and to 
this audience, an apology for having selected for my ad¬ 
dress a subject which has been so thoroughly, ably and ex¬ 
haustively considered in the past, by our ablest statesmen 
and most eminent jurists, and with which all who interest 
themselves in public affairs are more or less acquainted. My 
apology is, that the relations between the Federal and State 
Governments are of such momentous importance and never- 
ending interest, that frequent recurrences to the fundamental 
principles on which they rest, and on which the stability of 
our dual system of government depends, can not but have a 
tendency to preserve the spirit of liberty, to maintain free 
government, and to perpetuate American institutions. 

For the honor this dignified and learned Association con¬ 
ferred on me in the invitation to make this year’s annual 
address, and for the compliment involved in the presence 
of the accomplished and cultivated audience, to which I 
have had the opportunity to speak, I can not sufficiently ex¬ 
press my thanks. 

In conclusion, I feel that, without presumption, I may 
follow the illustrious example of Thomas Jefferson and 
commend to this Association, and to all the people of our 
common country, that essential principle of our Govern¬ 
ment, which demands that every American shall join heart¬ 
ily and earnestly in ^ffhe support of the State Governments 
in all their rights, as the most competent administration for 
our domestic concerns, and the surest bulwark against anti- 
republican tendencies” and in ^The preservation of the Gen¬ 
eral Government, in its whole constitutional vigor, as the 
sheet anchor of our peace at home, and our safety abroad.” 


U 


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